December 21, 2012

Wyden Floor Statement on the Removal of Controversial Leaks Provisions from Intelligence Authorization Bill

Washington, D.C.U.S. Senator Ron Wyden (D-Ore.) delivered the following floor speech after controversial leaks provisions that would have inhibited free speech and denied due process for intelligence officials suspected of leaking classified information were removed from the Intelligence Authorization Act of 2013. Wyden was the only vote against the Intelligence Authorization bill in committee and placed a public hold on the bill last month.

“M. President, the Senate is being asked today to approve the Intelligence Authorization bill for 2013 by unanimous consent.  I voted against this bill when it was marked up in committee, and I objected to it on the floor last month, but today I am pleased to be able to support it, and I thank Chairman Feinstein and Vice Chairman Chambliss for making changes to the bill to address my concerns.  

The changes that Senators Feinstein and Chambliss have made remove a large number of provisions that were intended to reduce unauthorized disclosures of classified information, also known as ‘leaks.’  I objected to these provisions because in my view they would harmed first amendment rights have led to less-informed public debate about national security issues, and also undermined the due process rights of intelligence agency employees, without actually enhancing national security.  I’m going to take a moment to explain my views on this, so that my colleagues who are not on the Intelligence Committee and who have not heard this issue addressed before will understand what this debate was about, and what I believe we have accomplished.  

I certainly agree with my colleagues that unauthorized disclosures of national security information, which are also known as “leaks,” are a serious problem.  Unauthorized disclosures of sensitive information can jeopardize legitimate military and intelligence operations, and even put lives at risk.  So I do believe it is appropriate for Congress to look for ways to help the executive branch protect information that intelligence agencies want to keep secret, as long as Congress is careful not to do more harm than good.  Personally, I have spent four years working on legislation to increase the criminal penalty for those who are convicted of deliberately exposing covert agents, and I was pleased that with the help of senators on both sides of the aisle to say that this legislation was finally signed into law in 2010.  

So I’m all for Congress recognizing that leaks are a serious problem, and for doing things to show the men and women of the US intelligence community the seriousness of this issue is recognized here in this body.  But it is important for Congress to remember that not everything that is done in the name of stopping leaks is necessarily wise policy.  

In particular, I think Congress should be extremely skeptical of any anti-leak legislation that threaten to encroach upon the freedom of the press, or that would reduce access to information that the public has a right to know.  

As most of my colleagues are aware, my father was a journalist who reported on national security issues.  Among other things, he wrote what many consider to be the definitive account of the Bay of Pigs invasion, as well as an authoritative account of how the US came to build and use the first atomic bomb.  Accounts like these are vital to the public’s understanding of national security issues.  Without transparent and informed public debate on foreign policy and national security topics, American voters would be ill-equipped to elect the policymakers who make important decisions in these areas.  

Congress, too, would be much less effective in its oversight if members did not have access to informed press accounts on foreign policy and national security topics.  And while many members of Congress don’t like to admit it, members often rely on the press to inform them about problems that congressional overseers have not discovered on their own.  I have been on the Senate Intelligence Committee for twelve years now, and I can recall numerous specific instances where I found out about serious government wrongdoing – such as the NSA’s warrantless wiretapping program, or the CIA’s coercive interrogation program – only as a result of disclosures by the press.  

With all of that in mind, I was particularly concerned about sections 505 and 506 of this bill, both of which would have limited the flow of unclassified information to the press and to the public.  Section 505, as passed by the Intelligence Committee, would have prohibited any government employee with a Top Secret, compartmented security clearance from, and I quote, “entering into any contract or other binding agreement” with, quote, “the media” to provide “analysis or commentary” concerning intelligence activities for a full year after that employee left the government.  

That provision would clearly have led to less-informed public debate on national security issues.  News organizations often rely on former government officials to help explain complex stories or events, and I think it is entirely appropriate for former officials to help educate the public in this fashion.  I am also concerned that prohibiting individuals from providing “commentary” could be an unconstitutional encroachment on free speech.  For example, if a retired CIA Director wishes to publish an op-ed commenting on a public policy debate, I see no reason to ban that person from doing so, even if he has been retired less than a year.  This provision also would have said that retired officials who comment in the media would not be able to serve on advisory boards for the intelligence community, which I believe would have deprived the community of valuable knowledge and advice.  

Section 506 would also have led to a less-informed debate on national security issues, by prohibiting nearly all intelligence agency employees from providing briefings to the press, unless those employees gave their names and provided the briefing on the record.  It seems to me that authorized, unclassified background briefings from intelligence agency analysts and experts are a useful way to help inform the press and the public about a wide variety of issues, and there will often be good reasons to withhold the full names of the experts giving these briefings.  I have seen no evidence that making it harder for the intelligence agencies to provide these briefings would benefit national security in any way, so I see no reason to limit the flow of information in this manner.

The third provision that I was most concerned about was section 511, which would have required the Director of National Intelligence to establish an administrative process under which he or she and the heads of the various intelligence agencies would have had the authority to take away pension rights from an intelligence agency employee (or a former employee) if the DNI or the agency head “determined” that the employee knowingly violated his or her nondisclosure agreement and disclosed classified information.  

I am concerned that the Director of National Intelligence himself said that this provision would not be a significant deterrent to leaks, and that it would neither help protect sensitive national security information nor make it easier to identify and punish actual leakers.  Beyond these concerns about the provision’s effectiveness, I was also concerned that giving intelligence agency heads broad new authority to take away the pensions of individuals who haven’t been formally convicted of any wrongdoing could pose serious problems for the due process rights of intelligence professionals, particularly when the agency heads themselves haven’t told Congress how they would interpret and implement this authority.  As many of my colleagues will guess, I was especially concerned about the rights of whistleblowers who report waste, fraud and abuse to Congress or Inspectors General.  

I outlined these due process concerns in more detail in the committee report that accompanied this bill, so I won’t restate them all here.  I will note, though, that I was particularly concerned by the fact that section 511 would have created a special avenue of punishment that only applied to accused leakers who worked for an intelligence agency at some point in their careers.  There are literally thousands of employees at the Departments of Defense, State and Justice, as well as the White House, who have access to sensitive national security information, and I don’t see a clear justification for singling out intelligence community employees, when there is no apparent evidence that these employees are responsible for a disproportionate number of leaks.  
And for what it’s worth, Robert Litt, the General Counsel for the Director of National Intelligence, told the American Bar Association last month that in his view these proposals “really would not have any deterrent impact or punitive impact on leaks, and might in fact have an adverse impact on the free flow of information to the American people.”

So, I am very grateful to the Chairman and Vice Chairman for responding to these concerns by removing nearly all of the anti-leaks provisions from this bill.  The one provision that remains would require the executive branch to notify Congress when they declassify information to disclose it to the press.  I believe that this provision will lead to more informed public debate by making it clear to members of Congress whether particular press reports are based on authorized-but-unattributed disclosures that we can respond to as we see fit, and unauthorized leaks that it would not be responsible for us to confirm or deny.  I believe that this is a useful provision and I commend the Chairman and Vice Chairman for including it.”

I think we all understand that in these important intelligence debates we always understood that it came down to striking a balance. There really is something like a Constitutional teeter totter where on one side you have protecting collective security and on the other side you have the public’s right to know and the individual liberties of the American people.

As written and reported by the committee, I believe that the legislation would have seriously put out of balance the constitutional teeter totter. I think it would have harmed legitimate first amendment rights. I think it would have done damage to the public’s right to know and I believe it would have discouraged the ability to ensure that we had a thorough and adequate discussion of issues that are so important to the American people as the American people look to the Congress of the United States to strike the appropriate balance between protecting our country at a time when there are serious threats and on the other hand protecting our individual liberties and the public’s right to know.

With the changes that the chair and the vice chair have accepted I believe that this legislation now strikes the right balance with both sides working on an agreement to approve the Intelligence authorization bill for 2013 by unanimous consent it is my hope that that legislation will be approved shortly.